Four key areas to consider now the controversial charges have been revoked
In a landmark ruling this morning, the Supreme Court decided that tribunal fees are unlawful. But what happens next?
Refunds all round
Those who have brought a case since July 2013, when the fees were introduced, will have their money refunded. Trade union Unison, which brought the case to the country’s top court, has said this will amount to more than £27m.
And Nicholas Robertson, head of employment in London at Mayer Brown, pointed out: “Employers who have had to pay fees to a claimant following the loss of an employment tribunal case may be able to claim the cost of those fees back too (although that is less clear cut).”
New legislation?
Unison’s argument partly hinged on the fees being introduced under a statutory instrument. This is a form of secondary legislation, as opposed to a piece of primary legislation such as an Act of Parliament.
“The government is likely to move quickly to put in place a more proportionate replacement fees scheme,” said Diane Gilhooley, global head of the human resources group at Eversheds Sutherland. “What that will look like remains to be seen.”
Beverley Sunderland, managing director at Crossland Employment Solicitors, suggested that the government’s next move might be to try and pass a statute for tribunal fees, but added: “They do not have a majority and, given the clear and unequivocal statistics of the impact of fees on the numbers of claims brought, it is difficult to see how any such legislation will get through parliament as no MP, whatever their politics, is likely to vote for it.”
Both the Labour Party and the Liberal Democrats vowed to scrap employment tribunal fees in their manifestos ahead of the June general election.
More cases...
Figures cited during the course of the case revealed that the number of tribunals brought had plummeted by as much as 70 per cent since the fees came into force.
“Once fees are scrapped, it is likely that there will be a significant rise in the number of claims being brought,” said Paul McFarlane, chair of the Employment Lawyers Association’s legislative and policy committee and partner at Weightmans. “This will have knock-on implications for business, Acas and the employment tribunal system itself – all of whom will have to deal with the increased volume of claims.”
… or more settlements
However, Robertson said that, now the fees had been scrapped, employers may not want to wait and see if their disgruntled employee will bring a claim and will opt to settle outside of the courtroom.
“My view is that they will not return to those levels because the Acas mandatory conciliation scheme will continue to encourage parties to settle claims before litigation,” Robertson said. “Now that the fees regime for employment tribunals has gone, I suspect employers will be more likely to settle at the Acas stage, rather than waiting to see if claimants follow through and issue a claim.”
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